Friday, November 30, 2012

Last week, in the small town of Palghar, Maharastra, a 21-year-old was arrested
for a Facebook post questioning a citywide shutdown to mark the death
of a regional leader. Her friend was arrested for ‘liking’ her status.
The two women, Shaheen Dhada and Renu Srinivasan, faced charges under
the controversial Section 66A of the Information Technology (Amendment)
Act 2008.

The case has triggered a massive public outcry here in India over the last ten days, leading to the charges being dropped. Section
66A, now instantly quotable by India’s Twitter generation, allows for
“punishment for sending offensive messages through communication
service”, which include messages that cause annoyance, inconvenience,
danger, obstruction, insult, injury, criminal intimidation, enmity,
hatred and even ill will. This very loosely defined law has led to a
series of arrests around the country in the past year, some of which
have only just come to light. Arrests included a professor from Kolkatta forwarding jokes about the West Bengal chief minister via email, an ordinary citizen from Pondicherry for tweeting that he believed the son of a senior cabinet minister is corrupt, a cartoonist
in Lucknow whose sketches alleged that corrupt politicians have led to
the debasement of democracy in India and two Air India employees in
Mumbai who were arrested
and held in custody for 12 days after they apparently insulted the
prime minister and the national flag in their Facebook posts.

Bowing to public pressure, the Minister for Information and
Communication Technology, Kapil Sibal, has spearheaded moves to quickly
add guidelines to the section. These new guidelines require
an inspector general or district commissioner of police (DCP) to
process every complaint under 66A. Twenty-eight states and seven union
territories have an inspector general, and each of the countries 657
districts has a DCP.

However, experts have warned this step is not enough to prevent
unwarranted arrests and say the section itself needs further revision.
In a further development, the Supreme Court of India has just accepted a
public interest litigation case calling for the section to be scrapped
on the grounds that it violates the right to free speech guaranteed by
the Indian Constitution.

These arrests have shown how easy it is for powerful politicians to
silence and intimidate their critics using the law as a crutch. Shaheen
Dhada and Renu Srinivasan were arrested after a local political leader
complained to the police. Even though the case has now been dropped,
frightened by the mobs and media spotlight, Shaheen has left
her hometown for some “peace”. Soon after, another boy, Sunil
Vishwakarma, was questioned by the police for apparently making “vulgar”
comments against Raj Thackeray, the nephew of the deceased leader. The
police have since released him, as he maintains his Facebook was hacked by someone else to stir up trouble.

The misuse of Section 66A has revealed serious gaps in the
legislative process and shown that junior police ranks lack the
understanding and training to correctly implement this order. The IT Act
was amended in haste in 2008 and passed in parliament without a debate.
Under the Indian Penal Code (IPC), the charge of defamation carries a
maximum jail sentence of two years, in contrast to the three years
Section 66A carries for the same offence. But the IPC requires a warrant
for an arrest for the offence, while arrests ordered under the IT Act
do not. Further, Section 66A had no explanations or guidelines attached
to it, which is why the government’s first step in response to the
public outcry over these arrests has been to “modify” the section and
provide guidelines.

These arrests — assaults on free speech — have revealed the nature of
politics in the world’s largest democracy. These high-profile cases all
involve the average citizen critiquing powerful politicians. The
freedoms at risk – the right to tweet, update a status, forward a
cartoon without the fear of becoming a political pawn, have galvanised
and angered the netizens of India. There is a serious backlash against
those political parties who seek to use the tools of social networking
to control them.
India has a legal convention that allows a member of the public to
act as a judicial activist and the the public interest litigation
currently before the Supreme Court says:

"unless there is judicial sanction as a prerequisite to the setting into
motion the criminal law with respect to freedom of speech and
expression, the law as it stands is highly susceptible to abuse and for
muzzling free speech in the country."

This is a welcome step. The people are of India are gaining the
confidence to use constitutional tools to fight back the top-down status
quo of the country.

Monday, November 19, 2012

A war over free expression between Indian citizens and their government is raging, with social media serving as the battlefield.

Two girls were arrested
in Mumbai today, one for having updated her Facebook status asking why
the city was observing a bandh — a city-wide shut down — to
commemorate the death of an influential regional leader, Bal
Thackeray. The other simply ‘liked’ the comment. The update was brought
to the notice of Shiv Sena local leader, outraged at the insult to his
party’s founder he went to the police and had them arrested. The pair
were released on bail today, but not before one of the girl’s uncle’s
orthopaedic clinic was ransacked by an angry Shiv Sena mob.
Shaheen Dhadha, 21, had written:

People like Thackeray are born and die daily and one should not observe a bandh for that.

The incident comes only a month after India’s first Twitter
arrest. In October 2012, Ravi Srinivasan, a small-town businessman was
arrested for tweeting to
his 16 followers that that Karti Chidambaram, a politician belonging to
India’s ruling Congress party and son of Finance Minister P
Chidambaram, had “amassed more wealth than Vadra” [Sonia Gandhi's
wealthy son-in-law].
Srinivasan was arrested for suggesting one cabinet minister’s son is
more corrupt than the son-in-law of another senior politician.

The seemingly politically motivated arrest
has just added fuel to the fire to a heated debate about how defamation
and hate speech on social media should be dealt with. It also raises
the question — is the government more interested in protecting itself
than its citizens?

At a forum, The Power of Social Media for Governance organised in
March 2011, while praising social media and e-government/commerce
initiatives, Information minister Kapil Sibal suggested that social media users also discuss the dangers of this new platform:

All kinds of opinions are put forward and that is dangerous. Freedom of
speech has some caveats. How do you ensure that (social media) sites
incorporate constrains [SIC] of freedom of speech?

The comment seemed to be aimed at social media users using these new
mediums to criticise the many corruption scandals in Indian public life.
The Indian public were furious at their political leaders. Sibal’s
predecessor, A Raja, was a perfect example. He was forced to resign
after becoming embroiled in a huge telecom scam.
Although there had been a story the previous month about a riot that apparently broke out due to a Facebook page
that denigrated the architect of the Indian constitution, Dr BR
Ambedkar, social media had not really been used for positive political
action in India.

In October 2010, however, an anti-corruption movement led by activist
Anna Hazare slowly began to caputure the imagination of the nation. As
Hazare, compared by the Indian press to Mahatma Gandhi, protested
corruption, the media and the public rallied behind him. The movement,
now known as India Against Corruption [IAC] used Facebook and Twitter to
connect with urban Indians — the middle class — who had borne the brunt
of corruption for years. IAC racked up followers and fans by the
thousands, and in April 2012, Hazare went on an indefinite hunger strike
to force the government to draft a stronger anti-corruption bill. It
was all India social media users could talk about. The web was key to Anna’s success. Today, the IAC Facebook page has over 754,000 supporters.

2011 was marked by a face-off between the government and “civil
society” that may mark a turning point in India politics. The sleeping
giant, the middle class, woke up and logged on.

Toward the end of 2011 it was revealed that Sibal suggested pre-screening of social media content to ensure that “objectionable content” was removed before it could offend.

According to leaked reports, Sibal pointed to a Facebook page
that maligned Congress party president Sonia Gandhi and said “this is
unacceptable”. At the time, experts like Pranesh Prakash from the Center
for Internet and Society pointed out that the existing IT Act (amended
in 2008) allows people who send information “that is grossly offensive
and of a menacing character” to be sentenced to three years in prison.
Prakash argued that the amount of content was too vast for social
networking sites such as Facebook, Twitter and Youtube to pre-moderate
and would delay their immediacy. More importantly, why should a third
party be forced to judge what is objectionable or not, if there were
already laws in place?

This idea of pre-screening content has been revised. But the theme
has been coming up again and again as the government seems to be unsure
of what strategy it should employ to stop both really offensive
material, but also, it seems, any criticism of itself from social media
networks.

In February, Facebook agreed to
comply with local laws and “remove content, block pages or even disable
accounts of those users who upload contents that incite violence or
perpetuate hate speech.” This, Sibal insisted, was not censorship but he
still raised the spectre of new laws designed to curtail social media
in India. It wasn’t long before #KapilSibalisanidiot started trending on
Twitter. Later that month it was revealed in a Google’s Transparency
Report that the government of India had asked the search giant to remove 358 items
in the first half of 2011. Only eight of these items were classified
as hate speech; the vast majority were criticisms of the government
(including videos on Youtube and posts on the social network Orkut.)

In August 2012, India found itself in an unprecedented situation
caused by text messaging and social media. Rumours of an attack against
Assamese migrants by Muslims were being sent across the country via
SMS. Many Assamese, over 400,000 by some estimates, in different parts
of the country started heading home, fearing their lives. The government
put in place a restriction to only five-SMSes
per day to control the rumour mill. Soon after, the minister gave more
interviews about social media, suggesting that incidents like the
Assamese exodus were the reason he wanted the help of intermediaries in
helping curtail the influence of anti-national elements and protecting
the sensitivities of individuals and communities. However, as Twitter
agreed to comply with the government in blocking
any communally charged tweets, the Twitter accounts of some journalists
also got blocked, forcing the minister to clarify that the government
was not seeking to block individual accounts. The damage was done, as
most observers felt that the government had tried to silence its critics
on social media instead pursuing any larger objective.

Which brings us back to the first Tweet (as well as Facebook update)
induced arrest. Srinivasan was booked under Section 66A of the IT Act
(amended 2008). This can jail, for up to three years, anyone convicted
of disseminating material that is “grossly offensive”, has “menacing
character” or is false with the aim of causing “annoyance,
inconvenience, danger, obstruction, insult,” among other related cyber
crimes. The women arrested for the Thackeray Facebook post were arrested
under the same Act (and also Section 295A of the Indian Penal Code that
relates to religious sentiments, event though they were discussing a
political, not religious, figure).

Section 66A — the very piece of law that internet experts flagged as
an alternative when Sibal suggested pre-screening social media content,
is now being abused. The current controversy is layered. The first
point of contention is that the arrest would never have been made so
swiftly if the “victim” had not been the son of a powerful minister. The
second is that Section 66A (IT Act, 2000) is unclear, which means, say experts, its open to abuse, as can be seen by current events.

In India, the distrust of the political class has never been sharper,
with extreme reactions from the establishment. In 2012 itself, a
cartoonist was arrested under Section 66A (IT Act, 2000) for mocking
the chief minister of Bengal, while elsewhere in Uttar Pradesh, another
cartoonist Aseem Trivedi
was arrested under Section 124 of the Indian Penal Code for mocking
India’s corrupt politicians. How the government balances Indian
citizens’ right to free expression against the need curtail genuine
incitement will be a test of its democratic credentials.